SZIYK v Minister for Immigration
[2006] FMCA 1408
•12 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIYK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1408 |
| MIGRATION – RRT decision – Mongolian applicant – applications to Tribunal and Court out of time – incompetent – no arguable case – application dismissed at show cause hearing. |
| Migration Act 1958 (Cth), ss.412(1)(b), 476, 476(2)(a), 476(4)(a), 477 |
| Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407 SZBVC v Minister for Immigration & Anor [2006] FMCA 834 SZICV v Minister for Immigration & Anor [2006] FMCA 1063 VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 |
| Applicant: | SZIYK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1729 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 12 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms T Quinn |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed as incompetent and under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1729 of 2006
| SZIYK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application that was filed on 19 June 2006, which seeks to invoke the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth). The application identifies two decisions which the Court is asked to review. The first is a decision made by a delegate in the Department of Immigration on 8 November 2005 which refused to grant a protection visa to the applicant. It is plainly not within the Court’s jurisdiction to examine this decision, since it is an excluded “primary” decision within s.476(2)(a) and (4)(a).
The second decision is a decision of the Refugee Review Tribunal dated 27 February 2006, which held that the Tribunal did not have jurisdiction to entertain an application for review of the delegate’s decision, because the application for review had been filed outside the mandatory time limit arising under s.412(1)(b) and reg.4.31 of the Migration Regulations.
The Minister has filed a response and an objection to competency, which dispute the Court’s jurisdiction to entertain the application.
It was returnable before me at a first court date on 11 July 2006. I did not deal with the question of competency on that day, but made directions listing the matter today for consideration of competency and whether the applicant has an arguable case for the relief claimed.
The applicant was given an opportunity to consider her position in relation to these matters, after a referral for free legal advice and receipt of a bundle of relevant documents.
I also directed her to file an affidavit stating the day when she actually received notification of the Tribunal’s decision. She did not do that. However the material filed by the Minister, which is consistent with an affidavit the applicant has filed, shows that she admitted in a letter signed by her and by her migration agent dated 20 March 2005 (sic: 2006), that she and her agent had received the Tribunal’s decision.
I find that her letter was prepared, signed by the applicant, and sent, no later than 23 March 2006, that being the date of a receipt stamp by the Department.
Under the time limits for applying to this Court provided under s.477 of the Migration Act, the applicant must bring an application within 28 days of actual notification of the Tribunal’s decision, but may make an application for extension of that time no later than 56 days after the
28th day. In short, it is necessary for an applicant to have filed something in the Court within 84 days of the actual notification of the decision. I have discussed the effect of these provisions in two cases, SZBVC v Minister for Immigration & Anor [2006] FMCA 834 and SZICV v Minister for Immigration & Anor [2006] FMCA 1063. As I explained in those cases, the bringing of an application and application for extension within the 84 day period is a condition on this Court’s statutory jurisdiction.
In the present case, I find that the application for review of the Tribunal’s decision which was filed in this Court was outside the time limit under s.477 and is therefore incompetent.
I also note that the applicant has no arguable case to show error in the Tribunal’s decision that it lacked jurisdiction because the application for review was out of time. It is well established that the 28 day time limit for filing an application in the Tribunal is mandatory (see Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407; VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 at [33]; Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 at [24]).
On the evidence which was before the Tribunal, and is now before me, not only was the applicant deemed to have received the delegate’s decision more than 28 days before she lodged her application for review, but she also presented a statutory declaration to the Tribunal stating:
I received the decision from DIMIA in my postal address in the second week of November 2005.
Her application for review was not filed until 16 January 2006.
The Tribunal’s decision was therefore undoubtedly correct as a matter of fact and law.
The applicant in her documents and submissions to me today has not presented any argument to overcome any of these time limit problems. She has requested that I should overlook the time limits, to allow the merits of her refugee claim to be addressed.
She protests that her original application for a protection visa, although it did not disclose the person who assisted her, was in fact presented by Mr Mollah, who was subsequently de-registered as a migration agent. Looking at the visa application, it does indeed appear to be one of Mr Mollah’s applications, shown by his handwriting, the brevity of its completion, and familiar false promises: “I will tell more details later”. It is clear, that it did not adequately present the applicant’s claims to fear persecution in Mongolia because of her sexuality.
However, the time limits on both the Refugee Review Tribunal and on this Court are conditions of their respective jurisdictions, and neither the Tribunal nor this Court have power to overcome those time limits to allow the applicant the opportunity which she seeks.
For the above reasons I am satisfied that this application should be dismissed as incompetent and also under r.44.12 on the ground of no arguable case.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 21 September 2006
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